Lee v. Virginia State Board of Elections

8/16/2019 Lee v. Virginia State Board of Elections

1/62

IN T H E

U N ITED STATES D IS T RI CT C O U R T

F OR T HE EASTERN DISTRICT O F

VIRGINIA

Richmond Division

r:j

I i .

; 1

Y 19

IG

J

i^-RK iis , r

BARBARA H. LEE

etal

Plaintiffs,

V

VIRGINIA

S TATE

B O A R D

O F

ELECTIONS

etal

Civil Action No . 3:15CV357 HEH

Defendants.

M E M O R N D U M O P IN I O N

This is an action challenging, on a number

of

fronts, the constitutionality of

Virginia Code § 24.2-643(B), commonly referred to as the Virginia voter ID lav^ or

Senate Bill 1256 ( SB 1256 ). In effect, this statutory provision requires voters in the

Commonwealth ofVirginia to present a form of statutorily-approved identification in

order to vote. The approved forms

of

identification include a valid Virginia driver s

license, U.S. passport, or other photo identification issued by the Commonwealth of

Virginia, one of its political subdivisions, or the United States; a valid student

identification card containing a photograph

of

the voter and issued by any institution

of

higher education located in the Commonwealth; or any valid employee identification card

containing a photograph

of

the voter and issued by an employer

of

the voter in the

ordinary

course ofthe

employer s business.

Va.

Code

§

24.2-643 B);

see

also

Pis.

Trial

Other

portions of the Amended

Complaint

seeking redress for long

lines

atpolling precincts

and automatic re-enfranchisement

of

persons convicted

of

non-violent felonies were either

dismissed

or

resolved by the parties.

Case 3:15-cv-00357-HEH-RCY Document 223 Filed 05/19/16 Page 1 of 62 PageID# 6260


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Ex

15 1 - Voter

Identification

Chart

Voters whoare

unable

to produce valid identification are permitted to cast a

provisional

ballot

which

must

be

cured by

the

ridaysucceeding election day

When

voters

areprovided with a provisional ballot for lack of properidentification, it is

noted

bytheelection official inthe provisional

ballot

log The notation

specifically

includes

that no identification is the reason the personis casting a provisional ballot. The voter is

then advised

of

the procedure to cure, enablingher ballot to be counted. To cure a

provisional ballot, voters must present valid identification to the local registrar either in

person or by fax or email. Trial Tr. 945:14-46:15, Feb. 25, 2016 Test,

of

Myron

McClees).)

Under the regulations implementing SB 1256, voters without valid identification

can obtain free photographic voter identification at a local registrar s office. The

application process requires the voter to identify herself by date

of

birth and social

security number. After confirming that the applicant is a registered voter, her picture is

taken and her signature is recorded on a digital pad. A photograph-bearing identification

card is the n s ent to the voter s address of record free of charge. This form o f voter

identification can only be issued at registrar s offices because it requires access to a

secure computer system containing the voter s personal identification. Consequently,

such identification cannot be issued at polling stations. {Id. at 1449:9-50:7,

1465:16-66:11, Feb. 26, 2016 Test.

ofEdgardo

Cortes).)

Plaintiffs urge the Court to issue a permanent injunction enjoining the

Commonwealth of Virginia and its agents from enforcing the

voter

ID law. In addition,

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they

ask

the Court to

find that

the photo

ID requirement for voting adversely

impacts

minority voters in violation of

Section

2 of theVoting Rights Act, as well asthe First,

Fourteenth and Fifteenth Amendments of the Constitution of the United States. Plaintiffs

also

ask this Court to find that the voter ID

law

intentionally discriminates against young

voters in contravention

of

the Twenty-Sixth Amendment.

Following resolution of pretrial

motions addressing

Plaintiffs standing

under

Federal Ruleof

Civil

Procedure 12 b 1 andthe

adequacy

of the underlying allegations

under Rule 12 b) 6), this Court conducted a seven day trial without a jury. At the close

of

the evidence, in lieu

of

oral argument, the Court afforded each party an opportunity to

file post-trial memoranda supporting their respective positions with specific references to

pertinent

portions of

the

voluminous

documents

placed

into

evidence in this case.^

This

opinion followed.

The core contention in this case is that the voter identification law was enacted by

the Virginia General Assembly with the intention of gaining partisan advantage by

placing an undue burden on certain classes

of

opposition voters. Count I alleges a

violation

of

Section 2 of the Voting Rights Act. In support, Plaintiffs contend that the

voter ID law has an adverse disparate impact on

fnc n

American and Latino voters.

Plaintiffs maintain that the law imposes a discriminatory burden on a protected class,

fostered in part by social and historical conditions in the Commonwealth

of

Virginia. In

Count II, Plaintiffs maintain that

the

Virginia voter ID law violates the First

mendment

^

The parties introduced approximately 8,000 pages

ofdocuments in

this case, plus an assortment

of

video tapes.

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and the Equal ProtectionClause the Fourteenth Amendmentin that it imposes an

undue burden on the right to vote and results in disparate treatment

protected classes

without a rational basis. CountIII, styled Partisan Fencing, alleges that theVirginia

voterID lawsubjects a

r up

of voters to disfavored treatment by reason of theirpolitical

views. Lastly, Counts IV and V allege intentionaldiscriminationby race and age,

respectively. Plaintiffs contend that the Virginia General Assembly enacted the Virginia

voter ID lawwith the specific intent to suppress AfricanAmerican, Latino,and young

vo t r s

In part, Plaintiffs evidence consisted

testimony from a dozen Virginia voters

who alleged that they were burdened by the Virginia voter ID law in casting their ballots

during the 2014 and 2015 election cycles. These individuals cited a variety

impediments that allegedly made the voting process unduly cumbersome. But in most

cases, complying with the law proved to be a surmountable hurdle. Plaintiffs offered a

variety expert witnesses describing the history racial discrimination in Virginia

politics and a demographic breakdown and analysis

segments

the Virginia

population who may not possess valid identification. Virginia election officials and

members

the General Assembly provided some legislative history on the enactment on

the Virginia voter ID law and its implementation by the Virginia State Board

Elections

( SBOE ).

The centerpiece Plaintiffs evidence was the expert testimony several

professorswith extensive experience testifying in election law related cases. One expert

concluded that in person voter identification fraud was rare. Another, after providing an

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overview o election laws adopted by approximately thirty other states concluded that

there was no rational basis for the adoption

o

the Virginia voter ID law and given the

history o discrimination in Virginia must have been adopted for the purpose o

suppressing minority votes.

The Defendantscountered with a numbero expert witnesseswho pointed out that

the statistical analysis employed by Plaintiffs arguably omitted a large segmento

Virginia voters who likely would have valid identification. Defendants experts also

testifiedthat based on their investigation and analysis the implementation o the

Virginia voter IDlaw resulted in

very

few individuals being unable to casta voteduring

the 2014 election cycle. They described the burden imposed by the Virginiavoter ID law

as having a fairly even effect on individuals o all ages races and nationalities.

Furthermore

under the statutory scheme adopted under SB

256

no voterwas actually

disenfranchised; each had a means o casting a ballot he or she chose to exercise

alternative voting options.

Lastly the Defendants experts pointed out that while the number o actual

convictions for voter fraud may be minimal that statistic may not accurately reflect the

number o such cases reported to law enforcement authorities. Irrespective

o

statistics

one defense expert testified that in her opinion several legitimate reasons existed

warranting passage

o

the voter ID law including that a large segment

o

the Virginia

population had a perception that in person voter fraud could potentially occur and

supported the legislation challenged in this case.

To provide some insight intothe deliberative process underlying the enactment

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and the implantation SB 1256, the Defendants, a former Secretary the SBOE, and a

number SBOE and Virginia Department Elections ( VDOE ) employees, along

with other local election officials,outlinedthe extensive public informationcampaign

launched in 2014 to educate voters on the necessity forproper identificationwhen voting.

EdgardoCortes ( Cortes ), the currentCommissioner the VDOE, who opposedSB

1256, testified that he and his staff attempted to implement the law in the least

burdensomeway possible. (Trial Tr. 1500:11-18, Feb. 26, 2016.) While this outreach

was not flawless, it included a large swath voters.

The evidencein this case clearly demonstrated, as both parties will concede, that

Virginia has an unfortunate historyof racial discrimination and statutory artifice to hinder

black voting The

evidence

is equally clear that

prior

to the adoption of theVoting

Rights Act in

965

( the Act ), legislation was enactedby the VirginiaGeneral

Assembly thatmaterially affected the rights ofAfrican Americans to vote TheVoting

Rights

Actwas intendedas a safeguard against policies andpractices undermining an

equalopportunity by black andwhite votersalike to elect their preferred representatives.

Thornburg

v

Gingles, 478 U.S. 30,47 (1986). While the Act undoubtedly ushered in

significant reform measures, underlying issues continued to spark partisan debate.

The evidence alsorevealedthat the Virginia voter ID law has createda layer of

inconvenience for somevoters. But the question squarely presented in this case is

whether Virginia Code § 24.2-643(B) is unconstitutional either in its adoption,

implementation, or enforcement. Does it, by design or otherwise, adversely affectthe

opportunity

ofminorities tovoteor isthe burden evenly

spread?

Is a legislative body s

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authorityto adopt protective legislationdependenton objective criteria or their delegated

judgment?

I. A Second

Look

at Standing

Before turning to the merits ofPlaintiffs' claims, the Defendants urge the Court to

revisit its earlier finding that the DemocraticParty ofVirginia ( DPVA ) has Article III

standing. In a Memorandum Opinion issued December 18, 2015, this Court concluded,

based upon a facial review of the Amended Complaint, that [i]n the immediate case, the

DPVAclaimsdirect injuryto its raisond'etre—electing candidates whosupportthe

Democratic

platform,

as opposed to

individualized interests

of its

members.

Mem. Op.

8, ECFNo 110).

The testimony at trial appears to support this conclusion. While it has no formal

membership roster, the

DPVA

is an umbrella organization encompassing committees of

supporters in every city and county inVirginia. RebeccaSlutzky ( Slutzky ), Executive

Directorof the DPVA, testified that under the party plan, it includes anyonewho leans

Democratic, votesDemocratic, or supports theParty. As theUnitedStatesSupreme

Court explained in

Warth

Seldin, 422U.S. 490 1975), associations can allege standing

basedupon two distinct theories. First, the association may have standing in its own

right to seekjudicial relief from injuryto itself and to vindicatewhatever rights and

immunities the association itselfmayenjoy. Warth, 422 U.S. at 511. Second, the

association may have standing as the representative of its members who have been

harmed. Id.; see also Hunt

Wash.

State

Apple

Advert.

Comm

432U.S. 333,

34 ^3

(1977).

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The DPVA serves as an umbrella organizationoverseeing local committees

composed

of

Democratic supporters, coordinating statewide campaign strategies, and

promoting voter turnout. The party expended time and resources to educate voters and

party members on the requirements of SB 1256. The party obtained lists of individuals

who may

not possess proper identification for

information

targeting. It alsohireda voter

protection director whose responsibilities included the identification and education of

voterspotentiallyburdened by identification requirements. Slutzky also testifiedthat the

voter education program necessitated by SB 1256detracted time and resources that

wouldhave otherwisebeen expended increasing voter turnout.

Both the chair andvice chairof theHenrico County Democratic Committee

described

similar experiences.

Both

were

active in

voter identification

education.

Cheryl

Zando( Zando ), Chair

of

the HenricoCountyDemocratic Committee, also chaired a

task forcewhich organizedphone bankspromoting free identification availableat the

registrar s office.

Cathy

Woodson Woodson ), Vice Chair oftheHenrico County

Democratic Committee, organized outreach projects at community eventsto familiarize

voters with identification requirements and access to free forms ofvalid identification.

oth Zando and oodsontestified that

but

for the need to educate voters on the

requirements of SB 1256, they would have

engaged

inother

campaign-related

activity.

Near identical experiences were recounted by

Susan

B.Kellom, Chairof theAlexandria

City Democratic Committee,

andJeffAllen Allen ), aDemocratic Party

field

organizer.

Collectively viewed, the DPVA

has shown sufficient

injury primarily

in the

form

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ofdiversion of time, talent, and resources to educate their voters and implement the

requirementsof the Virginia voter identification law. See Crawford v. Marion

Cnty.

Elec. Bd., 472 F.3d 949, 951 (7th Cir. 2007) (citing Friends

of

the Earth, Inc. v. Laidlaw

Envtl. Sevrs. Inc., 528 U.S. 167, 180-84 (2000)), affirmed > U.S. 181 (2008)).

In the Court s opinion.Plaintiffshave satisfiedtheir burden ofdemonstrating a

realistic dangerof sustaining direct injury as a resultof SB 1256, if in fact it suppresses

minorityvoters likely to support Democraticcandidates. Fla. State Conf ofNAACP

v.

Browning, 522 F d 1153, 1161 (11th Cir. 2008). Both individual Plaintiffs in this case

areregistered voters inVirginia whoaffiliate themselves withthe Democratic Party.

They express an intention to vote for Democratic candidates in the future and have been

involved in voter registration, education, and voter turnoutprojects. BothBarbaraH. Lee

( Lee ) and Gonzalo Aida Brescia ( Aida ) are members of their local Democratic

committee and intendto participate in get-out-the-vote activities during the nextelection

cycle. Aida also testified that as a result of the enactment

of

SB 1256, he had the

additional burden ofpreparing educational materials on valid forms of voter

identification, includingemails, graphics, andFacebook postings. These tasks consumed

timethat he would have otherwisedevotedto issueand candidate advocacy.

11.

Overview

of Legal Standards by

Which Evidence

is Measured

Section 2 of the Voting Rights Act, codified at 52 U.S.C. §

10301 a),

prohibits

any

standard,

practice,

or

procedure

which

results in a denial or

abridgement

ofthe

right

of

any citizen of the United States to vote on account

of

race or color. The statute

further

explains

that [a] violation of subsection a) is established if,

based

onthe totality



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of the circumstances, it is shown that the political processes leading to nomination or

election in the State or political subdivision are not equally open to participation by

citizens ofprotected races in that [they] have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice. League ofWomen oters ofN.C. North Carolina, 769 F.3d 224, 238 (4th

Cir. 2014) (second alteration in original) (quoting 52U.S.C. § 10301(b)).

Thecentral inquiry underSection 2 iswhether as a resultof the challenged

practiceor structureplaintiffs do not have an equal opportunity to participate in the

political processes and to elect candidates of their choice. Gingles, 478 U.S. at 44

(internal quotation marks and citation omitted). Proofof intentional discrimination is

unnecessary to prevail on a Section2 claim. Proof

of

discriminatory results is sufficient.

hisom

Roemer, 501 U.S. 380, 404 (1991). The essence

of

a [Section] 2 claim is that

a certain electoral law, practice, or structure interacts with social and historical conditions

to cause an inequality in the opportunities enjoyed by black and white voters to elect their

preferred representatives. Gingles, 478 U.S. at 47.

Based on a thorough analysis of Section 2 vote-denial jurisprudence, the Court of

Appeals for the Fourth Circuit inLeague ofWomen

oters of

North Carolina isolated the

two critical elements ofproving such a claim:

First, the challengedstandard,practice,or proceduremust imposea

discriminatoryburden on members ofa protected class,meaning that

members of the protected class have less opportunity than other members

of the electorate to participate in the political process and to elect

representativesof their choice. Second, that burdenmust in part be caused

by or linked to social and historical conditions that have or currently

produce discrimination against members of the protected class.



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769 F.3dat 240 (internal quotation marks and citations omitted).

The

Supreme Court has continually counseled

that vote-denial

cases brought under

Section

2

should

not

be

viewed

in

isolation,

but should

be

evaluated

in

light

of

the

totality

ofcircumstances.

The court

in

Gingles

suggested a number of

potentially

relevant

factors.

These

include: 1

any

history ofvoting-related discrimination in

the

pertinent

state; 2 the

extent

towhich

voting

is racially polarized; 3 the

history

ofuse ofvoting

practices

or

procedures that tend

to enhance

the

opportunity for

discrimination

against

minority groups;

(4) the exclusion of

members

of theminority

group

from

candidate

slating

processes;

(5)the

extent

to

which

minority group

members

bear the

effects

ofpast

discrimination in areas such as education, employment, and health, which hinder their

ability to participate effectively in the political process; (6) the use

of

even subtle racial

appeals in political campaigns; (7) the extent towhich the members

of

theminoritygroup

have been elected to public office in the jurisdiction; (8) evidence that elected officials

are unresponsive to the particularized needs

of

members of the minority group; and (9)

the extent to which the policy underlying the state s use

of

the practice or structure at

issue is tenuous. Gingles, 478 U.S. at 44-45.

In applying the analytical framework articulated in Gingles,

there

is no

requirement that any particular number

of

factors be proved, or [even] that a majority

of

them point one way or the other. Instead, courts must undertake a searching

practical evaluation

of

the past and present reality, [with] a functional view

of

the

political process. League of Women VotersofN.C., 769 F.3d at 240-41 (alterations in

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original) quoting Gingles, 478 U.S. at 45).

Turning to theFirstAmendment andEqualProtection claimsraised inCountII of

the

Amended

Complaint, this Court s

review isguided

by the

balancing framework

articulated in Anderson Celebrezze, 460 U.S. 780 1983), and amplified by Burdickv.

Takushi, 504U.S. 428 1992). The

Court

succinctly framed theAnderson-Burdick

controlling

standard

in Crawford Marion County

Election

Board:

a

court evaluating

a

constitutional challenge

to

an election regulation

[must] weigh the

asserted

injury to the

right

tovote

against

the

precise interests

put

forward

bythe

State

asjustifications for the

burden imposed by its rule. 553 U.S.

181, 190

2008) quoting Burdick, 504U.S. at

434) internal quotation marks omitted).

Finally, the

teachings

of the Supreme Court in

Village of

Arlington Heights

Metropolitan HousingDevelopment Corp., 429 U.S. 252 1977), are instructive in

analyzing the intentional discrimination claims in Counts IV and V. The court in

Arlington Heights restated the well-established tenet that [p]roofof racially

discriminatory intent or purpose is required to show a violation

of

the Equal Protection

Clause. Id. at 265. Arlington Heights identified a number

of

factors to be employed by

reviewing courts in evaluating facially neutral laws allegedly passed with a

discriminatorypurpose. This evaluation requires courts to perform a sensitive inquiry

into such circumstantial and direct evidence of intent as may be available. Id. at 266.

The court fiirther stressed that the impact of the official action may provide an important

starting point under discriminatory purpose analysis. Id.

In assessing whether racial discrimination has been demonstrated to be a



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substantial or motivating factor

behind

the

enactment

oflegislation, Arlington Heights

also delineated a number of non-exhausting factors to

guide the court: 1

the historical

background ofthe decision-making process, particularly if it indicates a series of official

actions taken

for

invidious

purposes; 2 the specific sequence ofevents

leading up

to the

challenged

legislative action; 3 departures from

normal

procedural sequence;

4

substantive departures,

particularly

if the factors usually considered important bythe

decision-maker strongly favor a decision contrary to the

one

reached;

5

the legislative

or administrative history especially where they are

contemporary

statements by

members

of the decision-making body, minutesof its meetings or reports. Id. at 267-68.

Once racial discrimination is shown to have beena substantial or motivating

factor behind the

enactment

of

the

law, the burden shifts to the law s defenders to

demonstrate

that

th e l aw wou ld

have

been enac ted

without

this factor.

Hunter

v.

Underwood, 471 U.S. 222, 228 (1985) (internal quotation marks and citation omitted).

III. Legislative History ofVirginia Voter Identification Bills

To provide historical context for the present litigation, some explanation

of

the

evolution of SB 1256 may serve as an enlightening preface. The stage is set with the

adoption

of

the Help America Vote Act ( HAVA )

of

2002 by the United States

Congress. With the objective ofprotecting the integrity of the electoral process, HAVA

imposed a number of requirements on the individual states. Congress required every

state to create and maintain a computerized statewide list of all registered voters. 52

U.S.C. § 21083(a)(1)(A). In addition, HAVA required states to verify voter information

contained on a voter registration application by using the applicant s driver s license

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number or the last four digits

of

the applicant s social security number. Id. §

21083(a)(5)(A)(i). Most pertinent to the case at hand,

HAVA

also impose[d] new identification requirements for individuals

registering to vote for the first time who submit their applications by mail.

If

the

voter

is casting his ballot in person, he

must

present local election

officials with written identification, which may be either a current and

valid photo identification or another form

of

documentation such as a bank

statement or pay check. If the voter is voting by mail, he must include a

copy of the identification with his ballot. A voter must also include a copy

of

the documentation with his application or provide his driver s license

number or Social Security number for verification. Finally, in a provision

entitled Fail-safe voting, HAVA authorizes the casting ofprovisional

ballots

by

challenged voters.

Crawford, 553 U.S. at 193 (citations omitted).

The photograph identification requirements established by HAVA applied only to

federal elections. However, as the Court pointed out in Crawford, the safeguard

measures adopted in HAVA did indicate that Congress believes that photo identification

is one effective method

of

establishing a voter s qualification to vote and that the

integrityof elections is enhanced through improved technology. That conclusion is also

supported by the Commissionon FederalElectionReform, chaired by former

President Jimmy Carter and former Secretary of State James A. Baker III. Id.

Therequirement that voters present a non-photo form of identification at thepolls

hasbeenin effectsince

1996

in the Commonwealth ofVirginia. A registered voter

without any form of identification could cast his or

her

ballot by simply executing an

affirmation

of identity.

Trial Tr.

956:20-24, Feb. 25, 2016

Test,

ofMyron McClees .

In 2012, it becameapparentto the SBOE that themeresigning

of

an affirmation of

identity

for

first time voters

in federal

elections who registered

by

mail

was

inadequate

to

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comply with

HAVA

standards. {Id. at 1611:15-12:4, Mar. 1, 2 6 Test, ofDonald

Palmer . The differing identification procedures for state and federal elections created

considerable confusion among poll workers. Id. at 1611:18-12:11.

In 2012, the Virginia General Assembly rescinded the self-affirmation procedure

and substituted a limited field

of

non-photograph bearing identification. To promote

uniformity, voters in Virginiawere required to produce one

of

the specified forms

of

identification in all elections, both state and federal. Va. Code § 24.2-643 version

effective untilJuly 1,2014 . Voters could register bymailwithoutsubmitting any

form

of identification andreceive a non-photo registration card. While largely supported by

Republicans, this legislation was adopted with bipartisan support. Itwas subsequently

reviewed andprecleared by theUnited

States

Department of Justice as required bythe

Voting Rights Act.

In 2013, just oneyearaftera voter

identification

billhad been adopted, the

General Assembly passed SB 1256. While this legislation expanded the list of

permissible forms

of identification, it required that

the

identification include a

photograph

of the voter. The

bill,

introduced by

Senator

Mark

Obenshain ( Senator Obenshain ),

sparked spirited partisan debate on

the floor

of

the Virginia General Assembly.

SB 1256

was ultimately adopted with

unanimous Republican support, coupled

withone

Democrat

and

one

Independent supporter. (Trial Tr. 1615:8-14, Mar. 1,2016 (Test, ofDonald

Palmer).)

The law

as enacted

also provided

for the issuance ofa

free

photograph-bearing

voter

identification

card by

local

registrars offices. If the applicant is a

registered

voter,

no further identification is required to obtain a

free

photo ID. Va. Code §24.2-643

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(version effective from July 1,2014). Approximately 4,500 free photo IDs have been

issued

The language

of

SB 1256 also required that the photo ID be valid. Donald L.

Palmer ( Palmer ), Secretary

of

the SBOE in 2013, testified that the definition

of

the

term valid kindled considerable debate between the SBOE and Senator Obenshain,

patron ofSB 1256. In reviewing SBOE s regulations, Palmer discovered that in either

2000 or 2001, the SBOE had issued guidance to registrars that any form of identification

expired in excessof thirty days shouldbe considered invalid. In the ensuing discussions

regarding SB 1256 s

implementation,

the

SBOE was

notin favor of adopting any specific

expiration

period. Senator Obenshain sent a letter tothe SBOE challenging its authority

to permit any form of expired identification to be honored by election officials as valid.

The SBOE, over the Senator s objection, voted to define a valid identification as one not

expired over

one

year. Trial Tr.

1621:4-17, Mar.

1,2016 Test, ofDonald Palmer .

After inviting publiccomment, the regulation wasadopted. Palmeralso testified

that inhis opinion, SB 1256 deterred voter fraud and served as a valuable safeguard. Id.

at 1634:5-7. In fact, he recalled that a

computerized

interstate cross-check of

persons

voting in

Virginia against votes cast

in

other states revealed several cases

of

possible

multiple voting. Thesecaseswere referred to theVirginia StatePolicebutdidnotresult

in prosecution. (M at 1682:3-23.)

According to Palmer, many of the provisionsof SB 1256were modeled after voter

ID

laws

adopted in otherstates such asGeorgia and

South

Carolina, whichhadbeen

precleared bytheDepartment of

Justice

pursuant to

the Voting Rights

Act. Id. at

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1650:16-23 1680:10-14.

J. Justin Riemer ( Riemer ), Deputy Secretary of the

SBOE

from October 2011

through January 2014, testified to several initiatives the SBOE undertook to improve the

electoral process in Virginia. For example, the SBOEpromoted legislation allowing for

the Department

of

Motor Vehicles ( DMV ) to transmit completed voter registration

forms electronically to the appropriate registrar s office so that those voters may be

registeredand added to the voter rolls. {Id. at 1554:3-55:11.) Additionally, the SBOE

attemptedto improve the process for absenteevoting by allowingvoters to apply for an

absenteeballot online. {Id. at 1555:17-56:3.) Althoughthis initiative ultimately

launched after his tenurewith the SBOE, he helpedto lay the policygroundworkfor its

implementation. {Id. at 1556:4-6.)

In thedebate preceding the adoption of

SB 1256,

Riemer recalled commentary in

theGeneral Assembly

concerning

the existence of

voter

fraud. He specifically

remembered a comment by Senator

Thomas

A.Garrett ( Senator Garrett ), in his

former

capacity as a Commonwealth s Attorney, thatGarretthad prosecuted such a case. He

also

remembered anarticle in theRichmond

Times-Dispatch

indicating thatvoter

related

fraud may bea bigger problem inVirginia than [the

Times-Dispatch]

had realized and

.. . had acknowledged. {Id. at 1563:11-64:2. While

Riemer

recalled

reports

of

voter

registration fraud, he admitted no

knowledge

of any

prosecution

forin person

voter

fraud.

Henoted that the SBOE conducted no formal study ofvoter fraud before SB 1256was

adopted. {Id. at 1573:6-9.)

Riemer did

testify

that an

analysis

was

conducted

todetermine how many voters

17



18/62

were in the

DMV s

system as either having operator's licenses or other forms

of

DMV

identification. The results indicated that 93.22percent of active voters in Virginia had

some form

of

DMV-issued identification. (Pis.' Trial Exs. 168, 185.) Riemer conceded

thoughthat this statistic did not reflect the number

of

individuals residing in rural areas

withoutaccess to a motor vehicle or were too disabled to get to polling locations.

The2012 legislation, in its original form includeda provision requiringvoters to

presentphoto identification. Delegate JenniferMcClellan ( DelegateMcClellan ), a

Democrat representing the Richmond area, testified that she was so concerned about its

effect on her minority constituents that she approachedGovernor Robert McDonnell, a

Republican

for assistance. Delegate McClellan described her district as an economically

diverse majority-minority district with a total black population approaching seventy

percent. She alsobelieved thata number ofher constituents bomas lateas

1940s

may

not have birth certificatesenablingthem to acquire the necessaryidentification.

Furthermore, in her opinion, the photo identification issuedby the DMVwas the

equivalent

of

a poll tax because

of

the 10 cost. She testified that she found the

Republican rationale for the photograph bearing identification to be unpersuasive. She

wasunaware of anyreported incidents of voterfraud thatwouldbe deterred by such

legislation. (Trial Tr. 376:14-77:8, Feb. 23, 2016.)

Delegate McClellan convinced Governor McDonnell thatthe photograph

requirement would place

an

undue

burden onher

less-affluent constituents.

At

Delegate

McC lellan s urging and after

conferring

with other groups representing minority

interests. Governor

McDonnell

amended the 2012 legislation byadding non-photo

ID

8



19/62

options to the list

of

acceptable forms of identification. Governor McDonnell also

pressed the General Assembly to include a budget itemunderwriting the cost

of

educating voters on the new identification requirements. Despite these modifications to

the legislation, Delegate McClellan still opposed the 2012 voter identification bill. She

testified that she had many constituentswho were unemployed, had no driver s license,

or any

form of

student identification. Id. at 377:9-18.) Moreover, she stridently

opposed the 2013 bill which revived the photo identificationrequirement. She added that

noAfncan-Americanmemberof the GeneralAssembly supportedthe 2013bill which, in

her view, burdened her constituency. Voters in her districtwere opposed to the 2013

voter identification law because there was no compelling reason to amend the 2012 law

by addinga photo identification requirement. {Id. at 380:18-82:7.) In their view,

nothing occurred between 2012 and 2013 to justify such action.

Priorto beingelectedto theVirginia

Senate

in 2015,ScottA. Surovell ( Senator

Surovell ) represented theMount Vemon area

of

Fairfax County in the House of

Delegates. He described hisHousedistrict as predominately upper classwiththe

exception

of

Gum Springs, an historic area with a lower income mix

of

African American

andLatinopopulation. The Senatordescribed himself as a life-longpolitical activist

aggressively involved in voter recruitment andworkingthe polls. Senator Surovell

testified that

he

dedicated

a

considerable

amount of time as aHouse member

interacting

personally with

Gum Springs

constituents. In his

campaign

for the stateSenate in 2015

Senator Surovell testified that he knocked on approximately 25,000doors in the area he

represents

9



20/62

Although Senator Surovell had only anecdotal evidence, and minimal hard

numbers, he suspected that many Gum Springs residents had neither the resources nor the

transportation to obtain any form valid photo identification. Many residents that

areahad noVirginia driver s license and reliedonpublic transportation. TheFairfax

County

Registrar s Office, according to Senator Surovell, is located in the

government

center,

which

is

approximately

a two-hour bus ride from hisdistrict, anda forty-five

minute commute by car. He believed this distance made a free form voter

identification beyond the reach some lower income voters.

Despite an unscientific poll of residents ofhis

House

district narrowly favoring a

photo identification

requirement

to vote,^ Senator Surovell

led

the

opposition

to

such

legislation ontheHouse floor. He too was unconvinced that there were any

reported

incidents ofvoter impersonation inVirginia warranting such legislative action. He

remembered asking his

Republican

colleagues to offerexamples of voter fraud. He

recalls none. In his view, the 2013 legislationwas a solution in search a

problem. Jd.

at 312:23-24.)

Although Senator Surovell argued

forcefiilly onthe floor

ofthe Virginia General

Assembly

that such legislation limited the constitutional

right

of

hisconstituents to

vote,

he admitted thathewas unaware of any incidents

where someone

was actually deniedthe right to vote as a resultof the photo identification

law. While

Senator Surovell suspected partisan motives for the adoption

of

the

2013

legislation,

he

conceded

that

popular support

forphoto

identification

was

probably

a

factor

inits

In Senator Surovell s informal survey his constituents,he received between 400 and 600

responses which

he

described as

either

an even

split,

ora slight majority in favor of ID.

Trial

Tr. 359:6-60:4, Feb. 23, 2016.)



21/62

adoption.

Algie Howell Jr.,a former member oftheVirginia House of

Delegates currently

serving on theVirginia

Parole

Board opposed voter identification

laws.

Hisopposition

wasbased in part on his personalexperience attending racially-segregated schools in

Virginia andwhat he described in his testimony asVirginia s fifty-year history of

discrimination. He recalled thatmany members of

his

African-American family

had

no

education. {Id. at 471 2-12:12.)

Following the adoption of SB

1256

theVDOB launched a statewide pre-election

campaign informingvoters

of

the photo identification requirement. This included

sending 86,000 postcards to persons on the active voter list who DMV records reflected

possessed no DMV-issued ID andwould likely need a photo ID to vote under the new

law. {Id. at 1474:20-75:6, Feb. 26, 2016 (Test,ofEdgardo Cortes).) This excluded

certainregular absenteevoterswho would not needphoto ID to cast an absenteeballot.

To educate local electoralboardmembers, general registrars, andpoll workers, the

VDOE instituted trainingprograms and issued handbooks andprocedural guides. {Id. at

1471:5-14; id. at 940:5-24, Feb. 25, 2016 (Test, ofMyronMcClees).)

Matthew J. Davis ( Davis ), the Chief InformationOfficer for the VDOE, also

testified

that his agency employed billboard ads radio and Facebook to acquaint voters

with the

recently enacted

identification

requirements. {Id. at

1006:15-07:24. The

VDOE

contracted with a marketing agency to assist indeveloping an outreach strategy.

With the agency s assistance theVDOE distributed over 500 000

fliers

and posters to

registrars offices. (Pis.

Trial

Ex. 155. There are 133 local registrar s offices in



22/62

Virginia.

In addition, Davis indicated that VDOE records reflected that 773 provisional

ballots were cast by voters without valid identification in 2014, as reported by 129

Virginiajurisdictions. The following year in 2015,408 provisional ballots were cast by

voterswith no acceptable form of identification. In 2015, however, twenty-seven

jurisdictions failed to report the number ofprovisional ballots issued to voters without

identification. Statistically, this translates to .04 percent

of

the total ballots cast in 2014

and .03 percent in 2015. (Defs. Trial Ex. 301.)

V

P l a i n t i f f s E v i d e n c e

Toprovide a historical overview of racial discrimination inVirginia, particularly

as it relates to voting rights, the Plaintiffs began their presentation of evidence with the

testimony

of

Dr. John Douglas Smith ( Dr. Smith ). Dr. Smith, who holds a Ph.D. in

Americanhistory from the University

of

Virginia and currently serves as the Director

of

Humanities at Colbum

Music

Conservatory was offered asan expert inVirginia history

with anemphasis on racial discrimination.

He

is the author ofa book entitled Managing

White

Supremacy. Although he

provided

his

impressions

of the effects of

contemporary

voting policies andpractices, thebulk of hiswritings andresearch appears to focus onthe

pre Voting Rights Act era. Dr. Smith recounted in some detail overt measures adopted in

Virginia to inhibit minority voting from thepost Civil Warera through Massive

Resistance. Inhis view following the adoption of theVoting Rights Act in

1965

the

strategy employed to suppress minority voting took a more subtle form.

According

to Dr. Smith during the

post Civil

War era African Americans initially



23/62

enjoyed somesuccess in electingAfricanAmericans to the GeneralAssembly, aswell as

one to the UnitedStatesHouse ofRepresentatives. Followingthe adoptionof the revised

Virginia Constitution in

1902,

African Americans experienced a decline in political

power

and

influence.

InDr. Smith s

opinion, with

the imposition of literacy

tests

and

enactment of a poll tax, Virginia s AfricanAmericans were essentiallydisenfranchised—

andremained secondclass citizens untilthemid-twentieth century.

Turning

to theCivil

Rights Era, following

the

decision

of the

Supreme Court

in

Brown

Board

of

Education, 347

U.S. 483 1954 , firmly resolved Virginia

political

leaders

ledthe

Massive

Resistance movement to keep

public schools

segregated. One

unyielding

county

took

the extraordinary step of closing its

public schools

for five

years

to avoid integration.

Laws

passed in

Virginia

to

hinder

desegregation

were

repeatedly

struckdownby federal courts, along withVirginia s poll tax for state elections. In the

interim,

the Twenty-FourthAmendment

was adopted

to abolish the poll tax for

federal

elections

In discussing more contemporary times. Dr. Smithhighlighted the electionof L.

Douglas Wilderas the firstpopularly elected African-American governor inAmerican

history. Butas

examples

of

continuing

racial overtones in

modem

Virginia politics, he

pointed

out

that Governor Wilder was elected by

a

smaller than expected margin

of

victory in

1989.

He also

noted

the

Declaration

ofApril as

Confederate History

and

Heritage

Month

by Republican governors and

Senator George

Allen s use of the term

macaca when referring to a man

of

South Asian descent as further evidence that race

3



24/62

continues to

play

a role in

Virginia s

politics. * As

further

examples ofresidual evidence

racial discrimination in Virginia Dr. Smith discussed the ongoing litigation over

claims

racial gerrymandering coupled with approximately twenty objections by the

Department Justice to changes in Virginia s voting laws under Section 5 the Voting

Rights Act.

In support

his conclusion that subtle remnants

discrimination remain in

Virginia politics. Dr. Smith points to the fact that Virginia has failed to elect an Afncan

American to a statewide office since Governor Wilder s election in 1989 which was

preceded by his election as Lieutenant Governor in

1985.

Dr. Smithdoes acknowledge

that Republicans have twice nominated African-American candidates for statewide office

in recent years, whileDemocrats have failed to do so.^

In his final analysis. Dr. Smith concludes that Virginia s voter identification law is

consistent with the long line of actions taken over Virginia s history to suppress

minority

vote. Dr. Smith appears to assume that the viewpoint

current legislators must be

infected by this inherited

legacy.

While

Dr.

Smith s

testimony

is

informative,

his broad

conclusions appear to be leavened largely by anecdotal evidence and historical inference

with scant evidentiary support. Dr.

Smith

neither interviewed anymember of theGeneral

Assembly nor reviewed the legislative record.

To demonstrate the burden to

voters

occasioned by

SB 1256,

Plaintiffs

introduced

According to

Dr.

Smith, Senator George

Allen

received

approximately

sixteen percent of the

Afncan American vote in his 2006 failed re-election bid after he used a racial slur.

No other AfncanAmerican haspursued state-wide office in a general election as a Democrat

since 1989 except Donald McEachin. In 2001 the Democrats nominated now Senator

McEachin,

an

Afncan American, for

Attomey General; however,

he lost to Jerry

Kilgore.



25/62

evidence from a series individuals and local elect ion officials who recounted

experiences prior to and during the 2014 electioncycle. These witnesses uniformly

describe themselves as favoring Democratic candidates. Two

of

the twelve burdened

voter witnesses were African American and the other ten were Caucasian.

Of

the twelve

four people actually cast votes in the 2014 or

2015

election: two timely cured their

provisional ballots one voted absentee and one returnedto the polls with valid

identification

Eight

other voterwitnesses made a

conscious choice

notto pursue othervoting

options or cure their provisional ballots eitherbecause the winner had been declared

they lost interest forgot or were angry. One

of

these witnesses who testified that she

left the polls in frustration indicated that no one offeredher a provisional ballot. Two

other non-voting

witnesses testified that they

were unaware

thatthey

could

curetheir

provisional ballots by fax or email.

In almost every case the testifying voterwas

unable

to produce a valid

identification

at the

polls.

Six of

these individuals despite being bona

fide

Virginia

residents had either an out-of-state or expired driver s license.^

One

had lost his voter

identification;

one

had

no Virginia operator s license but had a valid

passport which

he

omitted

to bring to the polls. One had an expired passport and anothervoter reasoned

that because

the

poll

workers knew him no

photo

ID should be necessary. Finally two

of the voter witnesses failed to timely receive their free voter identification. Each of

^With

certain exceptions

for military personnel Virginia Code §46.2 308

requires

every new

resident to obtain a Virginia operator s license within sixty days ofresidency.

5



26/62

these voters was eligible to ca st absentee ballots but s ome chose not to do so and others

we re unawa re t ha t i t was available

All twelve

of

the allegedly burdened voters who testified expressed frustration

with their initial inability to vote without photo identification. Most testified that they

were unaware of the requirement. Each also expressed their disagreement with the need

for such unexpired identification. Some were disgruntled by the necessity to travel to the

registrar s office to cure their vote, particularly those who were disabled or elderly.

Plaintiffs also designated depositions of two affected voters as evidence. Charles

Benagh, a white male, chose not to vote in-person in

2015

even though Fairfax County

had

informed him thathe possessed an appropriate

form

of identification. Benagh Dep.

43:1-11,48:20—50:3, Pis. Trial Ex. 220. Instead, he applied for and received an

absentee ballot

which he

chose

not to

return

because he did not

believe that

he

could

mail it and have it delivered in time to be counted.

Jd,)

Mary Joanna Jones Jones ), an eighty-one year-old African American, attempted

to vote in-person during the 2014 general election, butshe did not

have

an acceptable

form

of identification. Jones Dep. 11:1-14, 13:3-23, Pis. Trial Ex. 224.) Shecasta

provisional ballot, which

she

cured

the following Thursday. {Id.

at

16:12-25, 29:5-14.)

She attempted to obtain her

free

photographic identification from the registrar s office

when curing her ballot, but because of a mix-up in Richmond, she did not receive her free

identification in a timely

manner.

{Id.

at 18:4-22:20. To accommodate

her,

an

individual fi-om the registrar s office

came

to Jones s

home

in September

2015

to take her

picture for the free identification. {Id. at 22:21-23:25. She received her identification



27/62

before the general election and successfully cast her ballot that fall. Jd. at 22:21-25.)

In the final analysis, none o the voter witnesses was actually denied his or her

right to vote. Admittedly, for some, the process was cumbersome. Many voters,

including a number who testified in this case, were not informed they could cast an

absentee ballot, that they could cure the provisional ballot, or obtain a free photo ID.

Others had valid identification but failed to bring it to the polls.

To further illustrate the impacto SB 1256,Plaintiffs offered the testimony o a

number o Democratic Party activists and election officials. These witnesses recounted

the difficultyin educating low incomeandminority voters on the requiremento photo

identification. Most o these witnesses indicated that voters in their communitydid not

understand the need for photograph bearing identification.

The chair and vice chair

o

the Henrico County Democratic Committee described

their voter outreachcampaign,whichwas conducted in leaguewith the SBOE. It

included phonebanks, palm cards, fliers, andFacebook postings. Their efforts

specifically targeted minority and elderly voters. The vice chair described the outreach

progr m as successful.

The secretaryo the PrinceWilliamCountyElectoralBoard describedhis

community asa battle ground district with a

fairly even

minority-majority population.

Trial

Tr. 657:19-58:2, Feb.

24, 2016.) He intimated that because the local police

frequently

check

on

members of

the Latino community

to ensure

that

they

have proper

immigration identification, there may be amistrust ofgovernment. In his view,

the photo

identification requirement was unnecessary and was not well-received byvoters in

his



28/62

county. He found the requirement particularly problematic in high turnoutelection years

because it contributed to longer lines.

The chair of the Alexandria Democratic Committee who served on the Electoral

Board as well alsodescribed her education outreach as focusing on young and elderly

voters. Particularly challengingfor her was maintaining a list of collegesthat have some

presence in Virginia. Sincethis is a prerequisite to the validity

of

a college identification

she found herselffrequently

having

to check a schedule of

approved colleges.

Shealso

questioned the need for a photo ID to vote.

Three other Democratic operatives added their perspective. PlaintiffBarbaraLee

from Stanton Virginia believed that the voter identification requirement lowered voter

turnout.

Shealsobelieved that the requirement adversely impacted low income

areas

in

which peoplehad neitherthe time nor transportation required to obtainvalid

identification. Lee

however was only able

to

identify one

person

who she

believed

could notvote as a resultof thevoter identification requirements. Shealso admitted on

cross examination that she

never

advised this individual ofher right to cast an

absentee

ballot

Jeff

Allen

from

Alexandria Virginia

a

campaign manager political

consultant

and Democratic

field

organizer described the challenge he encountered in educating

what he described

as

lower turnout

voters. He revealed that

in

explaining the

requirements ofthe voter identification

law he only

mentioned the alternative ofcasting

an

absentee ballot

if

specifically

asked.

He recalled encountering

one

bedridden voter

who

he believed had no photo identification.

Allen added

on cross examination that the

8



29/62

bedridden voter indicated no interest in casting an absentee ballot.

PlaintiffGonzalo Aida a member of the Richmond Democratic

Committee

found

the voter ID law to be an obstacle during the 2014 elections. Aida focused his get-out-

the-vote activities on Latino communities and university campuses. He found university

students by and large to be unwilling to devote the necessary time to acquire photo

identification. As a poll worker he encountered a number ofpeople without valid photo

identification. Only a few people however declined to accept provisional ballots. He

did encounter some African Americans who were fhistrated and refused to accept

provisional ballots. Aida admitted on cross-examination that he was unawareof any

person who was unable to vote because of the Virginia voter identification law.

V

Defense Witnesses

The defense called a number ofVirginia election officials most ofwhose

testimony

is recounted in other

sections

of this opinion These witnesses

include

Edgardo

Cortes Commissioner of the VDOE; J. Justin

Riemer

former Deputy Secretary of the

SBOE; Matthew J. Davis Chief Information Officer VDOE; and Donald Palmer former

Secretary of the SBOE The defense also

introduced

the testimony

of

Myron McClees

Policy Advisor

VDOE

McClees attended a number

of

the committee hearings on SB

1256

He

encountered considerable partisan sparring but remembered arguments in

favor

of the bill

as a vehicle to reduce voter fraud. McClees characterized the decision

of

t he S BO E to

adopt

a one-year expiration date for voteridentification as a

compromise

McClees s

responsibilities also included educating voters on the identification requirements



30/62

prescribed by SB 256 His personal voter outreach focused on low incomeandminority

voters. For example, he sent letters to members of the NAACP and to members of the

clergy explaining the regulations and offering further assistance. McClees was concerned

that the provisional ballot used in 2014 did not mention the availability of free voter ID.

The present provisional ballot includes such information.

The Defendants also called Cameron Quinn ( Quinn ), former Fairfax County

general registrar, as a witness. Quinn described her extensive outreach efforts to educate

the 700,000 voters in her county on post-2013 voter identification requirements. To

enhance its implementation, she employed both mobile and satellite offices to register

voters and

issue free forms

o f

identification

Quinn readily admitted that she encountered a number

of

complications in

implementing the newly-enacted photo identification requirement. She recalled in July of

2014 sending a letter to Commissioner Cortes explaining problems with the mobile

system for issuing free voter identification. It required several weeks to bring the system

back online

Quinn testified that during the 2014 electioncycle,just under 500 provisional

ballots were cast in Fairfax County. Fifty

of

those were cast because the voter could not

present valid identification. fthat number, approximately one

half

were cured within

the statutorily-allotted time frame (TrialTr. 1718:19-19:1,Mar. 1,2016.)

VI. The Experts Interpretation of the Impact of SB 1256onMinority and Young

Voters

To addan interpretative glossto the

factual

evidence, eachsidepresented an array



31/62

of

expert witnesses most drawn from the academic community. Their widely differing

opinions were based on statistical models shaped from surveys public data and academic

studies.

Several experts employed analytical constructs crafted specifically for thistype

of litigation purporting to identify burdened segments of the population likely to have no

valid identification enabling them to vote. And each expert in varying degrees

acknowledged

Virginia s undeniable pre-Voting Rights Act

history

of discriminatory

votingpolicies. The experts however presented divergent viewpoints on the

justification

for photo-bearing voter identification, aswell asthemotives oftheVirginia

General Assembly in enacting such legislation.

a

Dr Al lan ich tm n

To support their contention that SB 1256

was

intended to discriminate against

certain groups by placing disparate burdens on votingrights the Plaintiffs called Dr.

Allan

Lichtman ( Dr.

Lichtman ), a

distinguished

professor ofhistory atthe

American

University.

In formulating

his opinions.

Dr.

Lichtman

applied

quantitative methodology

to

draw inferences from

political history. His resources included

scholarly

books,

articles,

reports, newspapers,

demographics, election returns,

court opinions,

and

scientific

surveys ̂ The

professor

noted

that he

had

testified

many times previously

as

an

expert in the field

of

legislative intent.

^

In supporting his

conclusion that SB 1256

stifled minority

voter

turnout, he

also relied

on

a

study

conducted on a Texas voting district and a survey of

200 Virginia

voters. (Trial Tr.

1334:08-35:04,1405:22-06:14,

Feb. 26, 2016.) Defendants expert

Dr.

Owen

countered

that

the

Texas

study involved adistinctly

different

population base and the sample size ofthe second

survey

was

too

narrow

to be of

value. {Id.

at 1956:14-21

Mar.

2 2016.) She

also

noted that

many

individuals

who

responded to

the

200-person

survey of

Virginia voters that reported

lacking proper identification actually chose not to vote

for

other reasons. Jd at 1953:06-56:13.)

3



32/62

Based upon his historical and quantitative analysis and relying on eight

of

the

nine factors articulated in Gingles supra. Dr. Lichtman concluded that the Virginia voter

ID law in controversy in this case was enacted and implemented with discriminatory

intent He further opined that the lawwas enacted not only to achieve political advantage

but also to burden the Democratic minority base. In his view race is a fundamental

divide politically between the Democratic and Republican parties. He perceivesthe

political base

of

the Republican Party as white voters and that of the Democrats to be

African Americans. Despite significant progress in recent years African Americans

according to Dr.

Lichtman have

a

much

lower

income

are lesslikely to havea college

degree andmore

likely

to be unemployed than white voters He

describes

the present

economic status

of

African Americans as a lingering effect

of

historical discrimination.

Dr Lichtman conceded that much of

the

basis for

his conclusions

consists of

a

mosaic

of circumstantial evidence

Normally

according to

Dr Lichtman legislators

do

not

openly state

their intent

when

it is

discriminatory

He highlighted the

fact

that votes

cast in the General Assembly on SB

1256

both in committee and on the

floor

were

either party

line ornear party line It was also

noteworthy

to

the

professor that Virginia

amended

the

2012 voter

ID

law

the

following

year to

add

the

photo

requirement

without

what he believed to be any rational basis. The statistical risk ofvoter fraud cannot

logically explain

the

addition ofa photo

requirement

in 2013 Dr Lichtman was quick to

add that a

Republican National Lawyers

Association study was unable to

identify

any

cases ofvoter impersonation fraud in Virginia Also

significant

to the professor in

informing his opinion was Senator Obenshain s opposition to the SBOE s decision to

3



33/62

allow expired identification. He also suggested that members

of

the General Assembly

should have known about academic studies showing that voter identification laws have a

disparate impact on African Americans.

In commenting on the so-called Senate factors relied upon in Gingles, Dr.

Lichtmandrewparticular attention to several factors which he contends are applicable in

Virginia. With respect to subtle racial appeals in campaigns, Dr. Lichtman mentioned a

disparaging racial comment made by Senator GeorgeAllen during his re-election

campaign in 2006 and arguably racial cartoons attributed to Republican sources.

Although

he presented no information

about

the

number

of African Americans running

for public office inVirginia, he considered the fact that L. DouglasWilderwas the only

fncan

merican

elected to statewide office and that fncan

mericans

are

underrepresented in the General

Assembly

Healsocited the legislature s rejection of a

proposed constitutional amendment enabling the automatic restoration

of

votingrights to

nonviolent formerfelons. Lastly, Dr.Lichtmanwas

of

the opinion that the failure

of

the

General Assembly

to

expand Medicaid was

an

example

of

elected officials

not

being

responsive to the needs ofAfncan

Americans

Heoffered no explanation as to how

Virginia

would

absorb the cost.

While

Dr.Lichtman conceded thatevidence of actual suppression is difficult to

unearth he steadfastly disagreed that otherstates which passeda strictvoterID lawdid

sowithouta latentmotivation to suppress minority vote To bolsterhis conclusion, he

elaborated by sayingthat of thefourteen states which passedvoter identification laws

after

2008

most

had

Republican control

ofthe legislature Intwoof

those states



34/62

according

to Dr. Lichtman, the legislatures

overrode

the

veto

of a Democratic governor.

Rhode Island was the one

state

that

enacted voter

ID with a Democratic

state legislature

and an Independent governor.

b. Testimony

ofDr

Lorraine Minnite

To provide an assessment of the

frequency

of voter fraud in Virginia the Plaintiffs

called Dr.

Lorraine Minnite Dr.

Minnite ),

an

associate

professor at Rutgers

University,

Department of Public Policy andAdministration. Dr. Minnite was received asan expert

in

the

field of

merican

election law and voter fraud. She is the author of a

book

entitled

TheMyth ofVoterFraud. After surveying all available information and statistics. Dr.

Minnite concluded that voter fraud is rare in Virginia. Her investigation found no

reported cases of voter impersonation fraud in Virginia in recent elections. For the

purpose of her analysis she adopted the definition ofvoter fraud as the intentional

corruption of the voting process by voters. Under her interpretation the deception by the

vot er has

to

be intentional

Dr. Minnite s findings are based on a combination of national and Virginia state

data. She obtained prosecution statistics from the United States Department of Justice

sent surveys to 2 700 district attorneys in the United States and wrote letters to every

state attorney general and secretary of state. She also requested similar information from

all ofVirginia s Commonwealth s Attorneys. However she received responses from

only nineteen

of

over 100 Virginia prosecutors. Some of the Commonwealth s Attorneys

responded that they had received complaints of fraud-related activities by voters but

none appeared to result in a formal prosecution. Similarly she received information from



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the Virginia State Police reporting convictions for election law violations. On review,

she concluded that most

of

these convictions were for illegal voting activities, but not

fraudulent voter impersonation.

In harvestinginformationconcerning the incidences ofvoter fraud in Virginia, she

read 647 relevant news articles. She gleaned from these articles that there were

approximately sixty cases

of

illegal voting by felons, but none involved actual voter

impersonation.

Dr. Minnite confined her statistical analysis to actual convictions and not reports

of alleged violations to law enforcement. Trial Tr. 770:16-71:08, Feb. 24,2016. She

also assumed in her study that if there was credible evidence of voter fraud, the

prosecutorwould have formally brought charges. She had no way

of

determining what

criteria prosecutors may have used to determine whether it was appropriate to pursue an

indictment or merely resolve the matter informally. Her statistics also did not capture

inadvertent voting in the wrong precinct.

Although Dr. Minnite voiced the opinion that there was insufficient evidence to

conclude that voter fraud is a rational justification for photo ID laws, she admitted that

such laws could prevent voter impersonation fraud. { d at 796:22-97:2. Dr. Minnite

also hastened to add that while she had testified previously in other cases, and it was

difficult to determine whether voter ID requirements suppress voter turnout, sufficient

information

may

be available now to conduct a more accurate scientific or statistical

analysis. She explained that her previous reluctance to draw any conclusion on

suppression

of

voter turnout was based on the number

of

varying factors that influence a



36/62

voter s decision during anyparticular voting cycle. {Id. at 870:12-71:20.)

Dr. Minnite also testified that

she

disagreed with other experts mterpretations of

the findings and recommendations

of

the Carter-Baker Commission. She characterized

the

findings

of the

Commission

as principally animated bya desire to instill voter

confidence. In fact sheadmitted

that

the Carter-Baker Commission

placed greater

weight ontheperception

that voter

ID laws enhance public

confidence

inthe

integrity

of

the electoral systemthan the actual numberof reportedvoter

fi aud

cases. Dr. Minnite

alsosuggested that the Commission s recommendation

of

requiring voter IDdid not

appearto evolve fi-om any significantdata baseor carefulstudy. She explainedthat the

Commission placed significant reliance on a study ofvoter fi-aud in Wisconsin. In her

opinion, the results of that investigation revealed that the problems which surfaced were

primarily administrative, rather than criminal.

Her ultimate conclusion was that while voter impersonation fi-aud is not non

existent, it occurs too infi-equently to constitute a rational basis for adoption

of

the voter

identification law enacted in Virginia.

c. Testimony of

r

Jonathan Redden

In an attempt to determine the number and types of registered voters who may

have an acceptable form of identificationcomportingwith the requirements ofSB 1256,

Plaintiffs presentedthe testimonyofDr. JonathanRodden ( Dr. Rodden ), a well-

respectedprofessor at StanfordUniversity. Dr. Roddenwas received as an expert in

political science, particularly the use

of

geospatial quantitativemethods. Dr. Rodden

employed three analytical constructs to form his conclusions as to which voters would



37/62

likely have proper

identification

The

underlying methodology

entailed

using geospatial

mapping

to plot each voter

from

the voter

file

maintained by the

SBOE

to determine

where each registered voter resided. He relied upon data from the DMV to determine

who would have a valid DMV issued photo identificationand information from the

Commonwealth to ascertain who would have a valid free voter identification card. He

also utilized several assumptions including his

belief

that anyone who lived

on a

military

reservation had

an

acceptable military photo identification

card Tothe

extent possible

he

attempted

to

identify individuals

from

the voter

file

that

may be

students based upon

age

gender and address. Dr. Rodden then gathered datausing three analytical

techniques. These included homogenous block analysis ecological inference analysis

and

atalist est imate

The homogenous block analysis takes individuals who self-identify as a certain

race and places them in a precinct with other individuals who self-identify as being of the

same race. The ecological inference analysis a somewhat esoteric technique developed

for voting rights litigation operates on a census data platform. Relying on census data

the

number of individuals of

a

certain

race

in

each individual

block can

be

determined

Dr. Rodden contends that the number of individuals in that particular block can be

identified from known data.

What

is unknown however is

how

the race statistics match

with the identification data. The ecological inference analysis attempts to take that

information base and puts statistical bounds on each block to determine how much of

each group most likely has appropriate identification. Dr. Rodden maintains that this is

done by ruling out impossible combinations. The Catalist estimate uses an individual s



38/62

full name, birth date, and associated geographical data to make an estimate of that

person s race. Dr. Rodden contends that its estimates are close to ninety percent

accurate, with one exception. The estimate is more likely to misclassify an African

American as wh it e t han v ice versa

Based upon the results ofDr. Rodden s geospatial quantitative analysis, he

concluded that identification possession rates of registered voters are higher among

whites than African Americans and Hispanics, higher among middle aged and older

voters than young voters, and higher in Republican precincts than Democratic precincts.

Dr. Rodden limited his quantitative analysis to the years 2012, 2014, and 2015. His

analysis revealed that over time there was an increase in identification possession rates.

He attributes this, however, to a decline in the number

of

registered voters, rather than an

increase in actual possession of identification among the voters.

Based on his homogenous block analysis. Dr. Rodden estimated that in 2012,

between seventeen and eighteen percent

of

African Americans lacked DMV

identification

compared to nine and eleven

percent

ofwhites ^ This statistic

reflects

only those individuals who lack a form of identification issued by the DMV or the free

voter ID offered at local registrars offices. When Dr. Rodden used a more inclusive

measure of identification, which encompassed individuals residingon military bases who

probably havea form of military identification or those meeting his criteria for a probable

student, the rates ofnon-possession dropped significantly. Under the inclusive

Q

Dr Thornton critiqued Dr. Rodden s approach bynoting that themore heterogeneous the

block s population, the higherthe potential for inaccuracy. Trial Tr. 1755:23-56:9, 1758:18-

24.)

8



39/62

identification analysis the numberofwhites without proper identification dropped to

between 3.2 and 3.9 percent for African Americans between 5.4 and 6.1 percent and

between 5.1 and 6.3 percent for Hispanics for the year 2015.

The ecological inferenceanalysis yieldsresults essentially parallel to those from

homogenous

blockanalysis. He estimates thatin 2012 approximately 17.5 percent of

Afncan Americans and 9.5 percent

of

whites lacked either

DMV

identification or free

registrar issued identification. Using the more inclusive analysis.Dr. Roddenestimates

that approximately 3.4 percent

of

whites 5.7 percent ofAfrican Americans and 6.7

percent ofHispanics lacked appropriate identification in 2015.

Turning to the Catalist estimate. Dr.Rodden estimates that approximately 4.1

percent

of whites 5.4percent of African Americans and 5.6percent of

Hispanics

lacked

some form of

valid identification

in

2015. Dr.

Rodden also

testified that

in

his

opinion

younger voters were less likely to have valid forms

of

identification than older voters.

Within the

age group twenty five

to thirty

approximately eighty five percent

of

individuals have

an

appropriate

form

of

identification. This

same rate applies to

individuals intheir thirties. This rate gradually increases and eventually plateaus for

individuals

above the age

of

fifty.

Virginians

over the age

ofseventy five

typically have

a declining rate

of

possession

of

acceptable identification.

Using

precinct

data

acquired from the

Commonwealth of

Virginia Dr.

Rodden

opined

that there is a correlation between

precincts

that gravitate

toward Democratic

candidates and residents without valid

voter

identification.

Dr.

Rodden

admitted on

cross examination that the absence

of

hard

data

required



40/62

him to

make

assumptions with respect to the number of students and persons with

military identification. He

also

acknowledged thathis analysis didnot

include

unquantifiable

rates ofpossession of

such

other forms ofvalid identification as

passports,

tribal, and government or employment-issued identification. His numbers also fail to

reflect active or retired members of

the

military who reside offbase

and

possess

appropriate identification.

(Trial Tr. 584:1-85:8,

Feb.

24, 2016.)̂

d.

Testimony of rJanet

Thornton

To counter the opinions

of

Plaintiffs experts, the Defendants offered the

assessment of three well-credentialed

political

scientists. Each identified what

they

believedto be flaws in the data, logic, and conclusions offered by

Documents

Lee v. Virginia State Board of Elections